This week Bridget Phillipson, the Secretary of State for Education announced she had halted commencement of the Higher Education (Freedom of Speech) Act. Though denounced by free speech purists, and those who consider their freedoms to have been curtailed, Phillipson made the right call. In doing so she has, I hope, signalled a more reasoned and cautious approach to balancing freedoms, something the Bill sidestepped and left to individual universities to handle, with disastrous consequences.
The Act was developed by the last Government, a manifesto commitment related to the no-platforming of visiting politicians and others to university grounds. The complexities of regulate speech quickly became evident when former Minister Michelle Donelan suggested protection in the Act for Holocaust deniers would “depend on what they are saying, whether they were straying into racism or straying into hate crimes”. Holocaust denial is antisemitism. It will always be racist.
Holocaust denial is an excellent prism through which to consider the Act, and the wider issues of freedom of expression. In the UK Holocaust denial is not illegal. Holocaust deniers have been prosecuted under various laws and it is not considered ‘protected’ speech but it is nonetheless legal and the Act mandated that institutions ensure lawful freedom of speech. There was never a clear answer on the legal protections Jewish students would have against Holocaust deniers coming onto campus.
Ministers kept telling those of us raising concerns that Office for Students (OfS) guidance would steer HE institutions. When it came, the OfS draft text failed to show any serious thinking about the balance of freedoms. It referenced Article 10 of the European Convention on Human Rights but not Article 17. Article 10 protects your right to hold your own opinions and to express them freely without government interference. Article 17 prevents the abuse of rights. Mentioning one but not the other exposed the thinking behind the advice.
That wasn’t the only problem. The guidance offered examples of what should, and should not, be allowed. A reasonable interpretation of the text was that mandatory antisemitism training in which an answer was definitive as to whether something was anti-Jewish racism, should not be permitted.
Legally expressible viewpoints were to be protected, including in relation to protests or posters. It wasn’t clear therefore whether daubing “Free Palestine” on a Jewish Society advertisement was allowed, or if another campus Society could hand out Holocaust denial material. University leaders could make the cost/benefit analysis that upsetting Jewish students by failing to act on antisemitism was less expensive than the potential fines of £50,000 for getting a free speech decision wrong, if taken to court via the provisions in the Act. It was a mess.
The OfS could not guarantee that the guidance it was preparing would be ready before the Act commenced. We had new laws, supported by unfinished and in some cases confusing and sub-par guidance, ready to be rolled out to a sector which appeared frightened of acting against racism, for fear it might breach free speech rules. Determining the lawfulness of speech would have been left to the discretion of institutions and student unions, the result would inevitably have been inconsistent and subjective interpretations.
Shadow Minister Claire Coutinho has suggested the decision to halt commencement is simply political. That it is a Labour effort to curtail or ignore freedoms but this is a problem for all parties. Legislating for freedom of expression needs to take a wide, not a purist view. Freedom of Speech doesn’t and shouldn’t mean freedom from consequences as was the case in the Act. Concerns about marginalisation, extremism and abuse of our liberties must also be taken onboard.
At present, speech – whether that be online or in the real world - that causes harm is often defended on the basis that to remove it would undermine freedoms. In reality, allowing the amplification of hate speech erodes the quality of public debate, and causes harm to the groups such speech targets. This defence, in theory and in practice, minimises free speech overall. If regulation is aiming to maximise freedom of speech for more people, especially those currently marginalised and attacked based on protected characteristics, it needs to be considered more broadly. The Freedom of Speech Bill ironically risked restricting the freedoms of Jewish students and enabling some of the racists.
As extremism online and elsewhere intensifies, we urgently need to decide what free expression looks like, and what protections we are prepared to accept. In halting commencement of the HE Bill, Bridget Phillipson has given us a chance to do just that.
Danny Stone MBE is chief executive officer of the Antisemitism Policy Trust
